Is Constitutionality all that's required in policing?

The framers of the Constitution were so concerned about American citizens being arbitrarily searched by police that they enshrined protections against the practice in the Bill of Rights. Because the Fourth Amendment protects us from “unreasonable” searches, generally speaking, police cannot search us unless they have probable cause to do so. Over time, however, the Supreme Court has announced a number of exceptions to this rule.

One major exception is that police can search whomever they want as long as they ask for permission and obtain consent—and some evidence suggests that, when asked, nearly everyone consents. Why? Some researchers, including Policing Project Director Barry Friedman, have argued most people aren’t aware they can say no. What’s more, in United States v. Drayton, the Supreme Court determined that the Fourth Amendment does not require police to inform a person of his right to refuse consent. The Drayton Court further held that a person’s consent to be searched is valid even if that person was not aware he had a right to refuse.

Should the police view Drayton as a playbook? A recent report from the New York Civil Liberties Union suggests that most New Yorkers think not. Those surveyed believed informing citizens of their rights, including the right to refuse a search without a warrant, was among the top most needed police reforms.

The recently enacted Right to Know Act in New York City is aimed at addressing this very concern, but much is still up in the air.

New York’s ‘Right To Know Act’

New York City passed the Right to Know Act in December 2017. The Act was codified as sections 14-173 and 14-174 of the New York City Administrative Code. Section 14-173 requires the NYPD to develop and provide guidance for its officers in obtaining “voluntary, knowing, and intelligent consent” prior to a search based on consent. Officers must also explain to citizens that the search will not be conducted if the citizen refuses to provide consent. Section 14-174 further requires that officers provide their name, rank, and command, and explain why they are conducting the search.

The Right to Know Act took effect on Friday, October 19. In the days leading up to the effective date, however, several organizations raised concerns that the NYPD had yet to publish updated guidelines for obtaining the voluntary, knowing, and intelligent consent that Section 14-173 mandates, and that communities were not consulted as the guidelines were being developed.

New changes under “The Right to Know”

Access the updated patrol guide through our website

Access the updated patrol guide through our website

In response to the Right to Know Act, the NYPD issued new guidance to officers regarding consent searches. The official, updated policy is now available on the NYPD’s website, though a search by the Policing Project shows the new policy was not posted for public view until after 12:00 p.m. on the day the law went into effect. The changes from the previous 2016 guidelines include more specific instructions for officers consistent with the Right to Know Act.

As NYPD told WNYC prior to releasing the guidelines, the new policy makes a slight change to the language officers should use when requesting consent based on a “founded suspicion.” The new guidance adds “May I search you?” to the previously suggested line, “I can only search you, if you consent. Do you understand?”

The new policy also requires that officers video record the request for consent and the response on their body-worn cameras (if applicable), or otherwise document the time, location, and date of the request, as well as the response and the apparent race, ethnicity, gender, and age of the person they are requesting to search. The policy also specifies officers may not detain or threaten use of force prior to obtaining consent unless there is reasonable suspicion the individual has committed, is committing or is about to commit a crime. Absent this suspicion, individuals who refuse the search are free to walk away—but the new regulations do add that officers may pursue if the individual runs away.

The new policy also requires officers offer a “Right to Know” business card as a means of identification. Several situations in which officers would be exempted from identifying themselves are also listed in the new guidelines, including if the officer is undercover, has a reasonable expectation of danger or is conducting a security search at an entry point to a public building.

Rolling Out Reforms: Process Matters

The Right to Know Act embodies an idea that is fundamental to the Policing Project’s mission: Being technically within the bounds of the Constitution should not be the only criterion for good policing. Although the Constitution does not require the consent provisions laid out in the Right To Know Act, the city nonetheless responded to calls from the community for more robust protections—an action we feel is commendable.

But while the Right to Know Act is a cause for optimism, it may be too early to celebrate. Reform advocates, including the NYCLU, argue the language officers are being trained to use still fails to make the right to deny consent clear and also fails to make clear that permissions for consent searches apply to home and vehicle searches as well.

Ideally, the community should not only be able to see the new guidelines before they are rolled out, but to also have a say in their development. The Policing Project also feels there may well be important law enforcement concerns to consider as well. When police and communities work together in developing new policies, each side can be made aware of the others’ point of view and work to create more balanced guidelines. The absence of this open input can breed skepticism of the NYPD’s commitment to following the new regulations.

Nonetheless, we feel the Right to Know Act represents an important core concept: Good policing should be more than just Constitutional, and citizens, legislatures and police can work together to develop policies that are protective of the community’s rights and responsive to its voice.

This post was written by Policing Project externs Sondra Saporta, Melanie Blair and Alexis Hill.